Abstract

The article examines recent cases such as Stack v Dowden and Jones v Kernott in England and Wales where the courts have restated the principles of the common intention constructive trust over property used as the family home. Both cases deal with disputes between cohabiting unmarried couples over the family home after termination of their relationships. The courts held in those cases that the presumption is that equity follows the law. Where, for instance, the legal title is held by the cohabiting couple in joint names, they are presumed to be legal and equitable joint tenants sharing equally unless one party rebuts that presumption by establishing that either their common intention was to hold the property in different shares or the original intention of equal sharing had changed over time, leading to an ambulation of the trust (the ambulatory trust). A rebuttal of the presumption will thus focus on the context of the couple’s relationship over the period of cohabitation (time), which arguably provides a more nuanced approach. It enables the parties’ relationship to be assessed from the time of acquisition of the property to the point of separation in order to ascertain their actual intentions. The focus of the article is on the way in which time and context of home-sharing by unmarried cohabitants are being construed by the English courts and, particularly, the assumptions being made about certain types of conduct. The article seeks to argue that the cases reveal how the law remains imbued with certain ideologies and therefore reinforces a particular type cohabiting relationship, i.e., one that mimics marriage. Women continue to be portrayed as ‘wife/mother/innocent’ who require the law’s protection against men. The sociology of unmarried cohabitation may require more in-depth examination in order to determine whether these assumptions are, or remain, apposite to cohabitants.